case: 15-15717 date filed: 12/30/2016 page: 1 of 52 sensitive … · 2017-05-16 · sensitive...

SENSITIVE SECURITY INFORMATION FILED EX PARTE AND UNDER SEAL


No. 15-15717-D

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

JONATHAN CORBETT,

Petitioner,

v.

TRANSPORTATION SECURITY ADMINISTRATION,

Respondent.

On Petition for Review of an Order of the Transportation Security Administration

PUBLIC REDACTED BRIEF FOR RESPONDENT

BENJAMIN C. MIZER Principal Deputy Assistant Attorney

General WIFREDO A. FERRER

United States Attorney SHARON SWINGLE MICHAEL SHIH

Attorneys, Appellate Staff Civil Division, Room 7268 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 353-6880

Case: 15-15717 Date Filed: 12/30/2016 Page: 1 of 52

mshih

Cross-Out

mshih

Cross-Out

Corbett v. Transportation Security Administration, No. 15-15717-D

C-1 of 1

CERTIFICATE OF INTERESTED PERSONS

Pursuant to Eleventh Circuit Rule 26.1, the undersigned counsel certifies that,

to the best of his knowledge, the following constitutes a complete list of the trial

judge(s), all attorneys, persons, associations of persons, firms, partnerships, or

corporations that have an interest in the outcome of the particular case or appeal:

Corbett, Jonathan

Ferrer, Wifredo A.

Mizer, Benjamin C.

Shih, Michael

Swingle, Sharon

/s/ Michael Shih MICHAEL SHIH

Counsel for Respondent




STATEMENT REGARDING ORAL ARGUMENT

Respondent, the Transportation Security Administration, does not request oral

argument because it believes that the facts and legal arguments are adequately

presented in the briefs and in the record, and because this case involves several types

of restricted information (including classified information and Sensitive Security

Information) to which petitioner has not been given access. Should the Court deem

oral argument appropriate, however, respondent respectfully requests the opportunity

to participate, and further requests that appropriate safeguards be implemented to

guard against public disclosure of restricted information.


mshih

Cross-Out

mshih

Cross-Out


ii


TABLE OF CONTENTS

Page

STATEMENT OF JURISDICTION ................................................................................. 1

STATEMENT OF THE ISSUE ......................................................................................... 2

STATEMENT OF THE CASE .......................................................................................... 2

A. Statutory and Regulatory Background .......................................................... 2

B. Factual Background and TSA Notice-and-Comment Rulemaking on AIT Screening ............................................................................................ 6

C. Prior Proceedings .......................................................................................... 11

D. Standard of Review ....................................................................................... 13

SUMMARY OF ARGUMENT ......................................................................................... 14

ARGUMENT ....................................................................................................................... 17

I. Petitioner Lacks Standing To Challenge TSA’s Policy Mandating AIT Screening for Certain Passengers as Warranted by Security Considerations. .......................................................................................................... 17

A. Petitioner Cannot Show that He Has Ever Been or Will Imminently Be Subject to the Policy He Challenges. ............................... 18

B. Petitioner’s Theories of Standing Lack Merit. ........................................... 21

II. TSA’s AIT Screening Policy Is Constitutionally and Procedurally Sound. ....... 23

A. The Challenged Screening Policy Does Not Violate the Fourth Amendment. ................................................................................................... 23

B. The Challenged AIT Screening Policy Does Not Violate the Administrative Procedure Act. .................................................................... 28


mshih

Cross-Out

mshih

Cross-Out


iii


1. TSA has completed notice-and-comment rulemaking with respect to AIT screening policies that encompasses the specific screening policy challenged here. ....................................... 29

2. The challenged screening policy is not a substantive rule that must be promulgated using notice-and-comment because it does not have a substantial impact on the few passengers to whom it applies. ......................................................... 31

3. Requiring certain passengers to undergo AIT screening as warranted by security concerns is neither arbitrary nor capricious. ........................................................................................... 33

CONCLUSION ................................................................................................................... 35

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM


mshih

Cross-Out

mshih

Cross-Out

iv

TABLE OF AUTHORITIES

Cases: Page(s)

Appalachian Power Co. v. EPA,

135 F.3d 791 (D.C. Cir. 1998) ......................................................................................... 30

Brown v. Texas,

443 U.S. 47 (1979) ............................................................................................................ 23

City of Houston v. FAA,

679 F.2d 1184 (5th Cir. 1982) ......................................................................................... 28

City of Indianapolis v. Edmond,

531 U.S. 32 (2000) ........................................................................................................... 5-6

* City of Los Angeles v. Lyons,

461 U.S. 95 (1983) ......................................................................................... 15, 18, 19, 20

Clapper v. Amnesty Int’l USA,

133 S. Ct. 1138 (2013) ............................................................................................... 17, 18

* Corbett v. TSA:

568 F. App’x 690 (11th Cir. 2014) .................................................................................. 12

767 F.3d 1171 (11th Cir. 2014),

cert. denied, 135 S. Ct. 2867 (2015) .................................................. 3, 4, 5, 13, 15, 22,

23, 24, 25, 26, 32, 33

____________________________

* Authorities upon which we chiefly rely are marked with asterisks.


v

Corbett v. TSA (con’t.):

135 S. Ct. 2867 (2015) ...................................................................................................... 13

Corbett v. United States :

458 F. App’x 866 (11th Cir. 2012),

cert. denied, 133 S. Ct. 161 (2012) .................................................................................. 12

133 S. Ct. 161 (2012) ........................................................................................................ 12

* Electronic Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec.,

653 F.3d 1 (D.C. Cir. 2011) ............................................................ 4, 5, 26, 31, 32, 33, 35

Illinois Dep’t of Transp. v. Hinson,

122 F.3d 370 (7th Cir. 1997) ............................................................................... 20, 21-22 Legal Envtl. Assistance Found., Inc. v. EPA,

400 F.3d 1278 (11th Cir. 2005) ....................................................................................... 17

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .................................................................................................... 17, 21

Michigan Dep’t of State Police v. Sitz,

496 U.S. 444 (1990) .......................................................................................................... 25

Miller v. Reed,

176 F.3d 1202 (9th Cir. 1999) ......................................................................................... 28

Penobscot Air Servs., Ltd. v. FAA,

164 F.3d 713 (1st Cir. 1999) ....................................................................................... 13-14


vi

Redfern v. Napolitano,

727 F.3d 77 (1st Cir. 2013) ............................................................................................. 4-5

Ruskai v. Pistole,

775 F.3d 61 (1st Cir. 2014) ................................................................................................ 7

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) ...................................................................................................... 17

Warth v. Seldin,

422 U.S. 490 (1975) .......................................................................................................... 17

U.S. Constitution:

Article III ...................................................................................................... 14, 17, 20, 21, 22

Amend. IV .................................................................................................... 13, 15, 23, 24, 25

Statutes:

Administrative Procedure Act ......................................................................... 13, 16, 28, 31

5 U.S.C. § 553(b)(3)(A) .................................................................................................... 31

5 U.S.C. § 553(b)(3)(B) ............................................................................................... 31, 34

5 U.S.C. § 706(2)(A) ................................................................................................... 13, 14

6 U.S.C. § 203(2) ..................................................................................................................... 1

6 U.S.C. § 551(d) ..................................................................................................................... 1

6 U.S.C. § 552(d) ..................................................................................................................... 1

6 U.S.C. § 557 .......................................................................................................................... 1


vii

28 U.S.C. § 1291 ..................................................................................................................... 1

49 U.S.C. § 114(b)(1) .............................................................................................................. 1

49 U.S.C. § 114(d) ................................................................................................................... 2

49 U.S.C. § 114(r)(1)(c) .......................................................................................................... 9

49 U.S.C. § 44901(a) ............................................................................................................... 3

49 U.S.C. § 44901(l )(2)(A) ..................................................................................................... 4

49 U.S.C. § 44902(a) ............................................................................................................... 3

49 U.S.C. § 44903(b) .............................................................................................................. 2

49 U.S.C. § 44904(a) ............................................................................................................... 2

49 U.S.C. § 44904(e) ............................................................................................................... 2

49 U.S.C. § 44925(a) .............................................................................................................. 3

49 U.S.C. § 46110 .......................................................................................... 1, 12, 20, 21, 22

49 U.S.C. § 46110(a) ............................................................................................................... 1

49 U.S.C. § 46110(c) ............................................................................................................. 13

Regulations:

49 C.F.R. § 1520.5 ................................................................................................................. 9

49 C.F.R. § 1520.7 ................................................................................................................. 9

49 C.F.R. § 1520.9(a)(2) ........................................................................................................ 9

49 C.F.R. § 1520.11 ............................................................................................................... 9

49 C.F.R. § 1540.107(a) .......................................................................................................... 6


viii

Other Authorities:

Passenger Screening Using Advanced Imaging Technology, 78 Fed. Reg. 18,287 (Mar. 26, 2013) .............................................................. 3, 4, 6, 7, 29

Passenger Screening Using Advanced Imaging Technology, 81 Fed. Reg. 11,364 (Mar. 3, 2016) ...................................................... 3, 4, 5, 8, 9, 29, 30

Regulations.gov, Passenger Screening Using Advanced Imaging Technology,

(notice-and-comment documentation), https://www.regulations.gov/

docket?D=TSA-2013-0004 .................................................................................................. 6

TSA, Frequently Asked Questions, http://www.tsa.gov/

travel/frequently-asked-questions (last visited Oct. 19, 2016) .......................... 8, 20, 22




STATEMENT OF JURISDICTION

On December 28, 2015, petitioner Jonathan Corbett filed this petition for

review pursuant to 49 U.S.C. § 46110. That statute permits a person “disclosing a

substantial interest” in an order issued by the Transportation Security Administration

(TSA) to obtain judicial review of that order in the courts of appeals.1 Id. Such a

petition “must be filed not later than 60 days after the order is issued.” Id. The

petition for review is timely because TSA issued the challenged order on December

20, 2015. Supplemental Appendix (“SA”) 51. However, as explained more fully

below, the Court lacks subject-matter jurisdiction over the petition because petitioner

does not have standing to bring it. For the same reasons, petitioner has failed to

allege facts “disclosing a substantial interest” in the challenged order, and thus cannot

satisfy the statutory predicate for a petition for review under § 46110.

1 Section 46110 applies to orders issued by “the Under Secretary of

Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary . . . in whole or in part under this part, part B, or subsection (l ) or (s) of section 114.” 49 U.S.C. § 46110(a). When TSA was created, Congress appointed the Under Secretary of Transportation for Security as the head of TSA. Id. § 114(b)(1). In 2002, the functions of TSA and the Under Secretary of Transportation for Security were transferred to the Department of Homeland Security. 6 U.S.C. §§ 203(2), 551(d). Statutory references to the Under Secretary of Transportation for Security are thus deemed to refer to TSA and its Administrator. See id. §§ 552(d), 557.


mshih

Cross-Out

mshih

Cross-Out


2


STATEMENT OF THE ISSUE

This petition for review challenges a TSA order that requires certain airline

passengers, as warranted by security considerations, to pass through scanners

equipped with advanced imaging technology (AIT). Such passengers may not decline

AIT screening in favor of an alternate screening method, such as a pat-down.

The issues presented are:

(1) Whether petitioner, who has never been compelled to undergo AIT

screening under the policy, has standing to challenge it;

(2) Whether the policy violates the Fourth Amendment;

(3) Whether the policy is a substantive rule subject to the Administrative

Procedure Act’s notice-and-comment requirements; and

(4) Whether the policy is arbitrary or capricious.

STATEMENT OF THE CASE

A. Statutory and Regulatory Background

1. Congress vests responsibility for civil aviation security in the TSA

Administrator. 49 U.S.C. § 114(d). The Administrator must “assess current and

potential threats to the domestic air transportation system,” take action to protect the

Nation from those threats, and improve transportation security in general. Id.

§§ 44903(b), 44904(a), (e). Specifically, the Administrator must ensure that “all


mshih

Cross-Out

mshih

Cross-Out


3


passengers and property” are screened before boarding, to prevent passengers from

“carrying unlawfully a dangerous weapon, explosive, or other destructive substance.”

Id. §§ 44901(a), 44902(a).

Nonmetallic explosives and other nonmetallic threats pose a significant danger

to aviation security. See Passenger Screening Using Advanced Imaging Technology, 81 Fed.

Reg. 11,364, 11,365 (Mar. 3, 2016) (final rule); see also 49 U.S.C. § 44925(a) (directing

TSA to “give a high priority” to the development of new technologies to detect such

threats). This danger received nationwide attention when, on Christmas Day, 2009, a

terrorist affiliated with Al Qaeda in the Arabian Peninsula attempted to destroy a

plane using a nonmetallic explosive device hidden in his underwear. Passenger Screening

Using Advanced Imaging Technology, 78 Fed. Reg. 18,287, 18,299 (Mar. 26, 2013) (notice

of proposed rulemaking); see also id. (describing similar attempts). The screening

procedures then in effect, which included the use of metal detectors and pat-downs,

did not detect the Christmas Day bomber’s device. Id.

TSA moved quickly to address the threat posed by nonmetallic objects. In

October 2010, TSA began using AIT scanners as a primary screening method at

airport security checkpoints. Corbett v. TSA, 767 F.3d 1171, 1174-75 (11th Cir. 2014).

Unlike conventional metal detectors, AIT scanners can detect both metallic and

nonmetallic objects concealed on a passenger’s body or in a passenger’s clothing. Id.;


mshih

Cross-Out

mshih

Cross-Out


4


see 78 Fed. Reg. at 18,297 (listing examples of potentially dangerous items, including

nonmetallic threat items, that TSA has discovered using advanced imaging

technology). TSA has determined that AIT scanners are the “most effective

technology currently available” to repair this “critical weakness” in the Nation’s

security infrastructure. 81 Fed. Reg. at 11,365.

2. The AIT scanners that were then available for use by TSA displayed an

image of “the body contour of the passenger” but “did not store, export, or print the

images.” Corbett, 767 F.3d at 1175. The D.C. Circuit held that the use of such

scanners, in addition to the use of physical pat-downs of passengers who refused AIT

screening, was lawful under the Fourth Amendment. See Electronic Privacy Info. Ctr. v.

U.S. Dep’t of Homeland Sec., 653 F.3d 1, 10-11 (D.C. Cir. 2011) (hereinafter “EPIC ”).

AIT scanners now protect passengers’ privacy to an even greater extent than

the scanners whose use the D.C. Circuit deemed constitutional. After the D.C.

Circuit decided EPIC, Congress mandated that all AIT scanners used for passenger

screening must incorporate “automatic target recognition” (“ATR”) software. 49

U.S.C. § 44901(l )(2)(A). This software “produces a generic image of the individual

being screened that is the same as the images produced for all other screened

individuals.” Id. By May 2013, TSA had replaced or upgraded all AIT scanners at

airport checkpoints with updated machines with ATR capability. See Redfern v.


mshih

Cross-Out

mshih

Cross-Out


5


Napolitano, 727 F.3d 77, 84 (1st Cir. 2013). Consequently, AIT scanners no longer

display the body contour of scanned passengers. Each scanner instead notifies TSA

agents about potential concealed threats by highlighting those areas on a generic

outline of a person, which image is temporarily shown on an attached monitor. See

Corbett, 767 F.3d at 1175; SA 37 (example image). The scanners in use at airports do

not collect any personally identifiable information, do not display an individualized

image every time a passenger passes through them, and are not configured to store or

to transmit any passenger-specific images. See 81 Fed. Reg. 11,373-82; see AR 4,237.

This Court has held that AIT scanners equipped with ATR software

“effectively reduce the risk of air terrorism” while “pos[ing] only a slight intrusion on

an individual’s privacy.” Corbett, 767 F.3d at 1181. The use of such scanners, the

Court concluded, is “a reasonable administrative search under the Fourth

Amendment.” Id. at 1179.

3. TSA initially deployed AIT scanners as a primary screening method without

public rulemaking, see EPIC, 653 F.3d at 4, but the D.C. Circuit held that notice-and-

comment rulemaking was required, id. at 8. That court remanded the matter to TSA

but did not enjoin TSA’s use of AIT scanners, citing TSA’s “obvious need . . . to

continue its airport security operations without interruption.” Id. at 11. The D.C.

Circuit pointed to the Supreme Court’s observation in City of Indianapolis v. Edmond,


mshih

Cross-Out

mshih

Cross-Out


6


531 U.S. 32 (2000), of the “particularly acute” need for searches at airports to ensure

public safety, and further recognized that “an AIT scanner, unlike a magnetometer, is

capable of detecting” and “deterring[] attempts to carry aboard airplanes explosives in

liquid or powder form.” EPIC, 653 F.3d at 10. As a result, TSA continued to use

AIT scanners at checkpoints while it undertook notice-and-comment rulemaking.

B. Factual Background and TSA Notice-and-Comment Rulemaking on AIT Screening

TSA issued a notice of proposed rulemaking on March 26, 2013. See 78 Fed.

Reg. 18,287. The proposal was designed to “codif[y] the use of AIT to screen

individuals at aviation security screening checkpoints.” Id. at 18,289. TSA proposed

to amend existing regulations prohibiting individuals from passing beyond a security

checkpoint and boarding a plane “without submitting to the screening and inspection

of his or her person and accessible property in accordance with [TSA] procedures.”

49 C.F.R. § 1540.107(a). The proposed rule clarified that “[t]he screening and

inspection” procedures mandated by 49 C.F.R. § 1540.107(a) “may include the use of

advanced imaging technology.” 78 Fed. Reg. at 18,296.

The preamble to the proposed rule explained that “AIT screening [was]

currently optional” for all passengers, but that passengers would “receive a pat-down”

should they decline to undergo such screening. 78 Fed. Reg. at 18,296. However, the


mshih

Cross-Out

mshih

Cross-Out


7


preamble to the proposed rule specifically invited public comments on “the ability of

passengers to opt-out of AIT screening” under the proposed rule, thereby notifying

the public that TSA was considering mandatory AIT screening. Id. at 18,294.

Over 5,500 comments were submitted to the agency on the proposed rule. See

https://www.regulations.gov/docket?D=TSA-2013-0004 (select “View all documents

and comments”). Some commenters complained that the proposed rule permitted

the agency to make AIT screening mandatory. See, e.g., Comments of the Competitive

Enterprise Institute and Robert L. Crandall 5-6 (June 24, 2013); Comment of the

United States Justice Foundation 2 (June 24, 2013); Comment of Freedom to Travel

USA 18 (June 23, 2013); Comments of Jim Harper, John Mueller and Mark Stewart of

the Cato Institute 8-10 (June 21, 2013); Comment of Marianne Cherrier Burns (May

29, 2013). One commenter criticized the proposed rule for not making AIT screening

mandatory. See Comment of James L. Bareuther (Apr. 17, 2013); cf. Ruskai v. Pistole,

775 F.3d 61, 81 (1st Cir. 2014) (describing petitioner’s argument that TSA should be

required to use AIT scanners instead of metal detectors).

In December 2015, while notice-and-comment rulemaking was underway, TSA

publicly issued a Privacy Impact Assessment Update for TSA Advanced Imaging

Technology. See Administrative Record (“AR”) 1900-06. The Privacy Impact

Assessment explained that TSA had changed its “operating protocol regarding the


mshih

Cross-Out

mshih

Cross-Out


8


ability of individuals to . . . opt-out of AIT screening in favor of physical screening.”

AR 1901. “While passengers may generally decline AIT screening in favor of physical

screening, TSA [now] direct[s] mandatory AIT screening for some passengers as

warranted by security considerations in order to safeguard transportation security.”

AR 1903. Because “[t]his will occur in a very limited number of circumstances,” the

change in operating protocol will not affect the “vast majority of passengers.” See

TSA, Frequently Asked Questions, http://www.tsa.gov/travel/frequently-asked-

questions (search “decline AIT screening”) (last visited Oct. 19, 2016).

TSA promulgated its final rule regarding AIT screening in March 2016. See 81

Fed. Reg. 11,364. Like the proposed rule, the final rule provides that screening and

inspection at an airport security checkpoint “may include the use of [AIT].” Id. at

11,405. The preamble to the final rule expressly references the Privacy Impact

Assessment, which recognizes that AIT screening will be mandatory for some

passengers as warranted by security considerations, noting that it reflects “current

DHS policy.” Id. at 11,366.

The preamble to the final rule discusses commenters’ concerns that the

proposed rule permits TSA to require AIT screening without a right to opt-out, and

explains that TSA has revised language in the proposed rule and in the regulatory

impact analysis to state that passengers “may generally opt-out of AIT screening.” 81


mshih

Cross-Out

mshih

Cross-Out


9


Fed. Reg. at 11,366, 11,388-89. However, TSA explicitly declined to codify a right to

opt-out of AIT screening in the text of the final rule, noting that the agency “may

require AIT use, without the opt-out alternative, as warranted by security

considerations in order to safeguard transportation security.” Id. at 11,388-89. It is

that policy that petitioner challenges.

As indicated by the portion of the administrative record containing Sensitive

Security Information (SSI),2 the challenged AIT screening policy applies only to

individuals who have been issued a boarding pass with an “SSSS” notation indicating

that they have been selected for enhanced screening. See SA 70. This notation

generally means that the passenger in question is a “selectee.”

selectees are individuals who are “[k]nown or suspected [t]errorists” or who have been

“identified as [posing a] higher risk” to airline security “based on intelligence

SA 90 (enumerating categories of selectees). Additionally, as of July 2016,

2 Congress has directed TSA to “prescribe regulations prohibiting the

disclosure of information obtained or developed in carrying out security . . . if [TSA] decides that disclosing the information would . . . be detrimental to the security of transportation.” 49 U.S.C. § 114(r)(1)(C). In response to that directive, TSA has defined a set of information as Sensitive Security Information (SSI) that may not be disclosed except in certain limited circumstances. 49 C.F.R. § 1520.5 (describing information that constitutes SSI); id. § 1520.9(a)(2) explaining that SSI may generally be disclosed only to “covered persons who have a need to know”); id. § 1520.7 (defining “[c]overed persons”); id. § 1520.11 (defining “need to know”).


mshih

Cross-Out

mshih

Cross-Out

SENSITIVE SECURITY INFORMATION FILED BX PAR TB AND UNDER SEAL

T SA has instituted a policy under which

airline passengers- are randomly designated as selectees for the

purpose of a particular trip. SA 106. T SA designed this policy to create the public

perception that "enhanced screening is conducted on a random basis»' thus deterring

"[u]nknown terrorists" without significantly impeding checkpoint operations. SA

105.3

A 2015 security review, conducted by the Office of Inspector General within

the D epartment of H omeland Security, uncovered weaknesses in tl1e screening

procedures TSA was then applying to selectees. See SA 13, 16, 19; see also Classified

Supplement to tl1e Administrative Record ("CS") 99-100 (classified report); id 55-56

(TSA response).

Covert tests also suggested that selectees could

opting out of AIT screening in favor of a

pat-down. See SA 14. T hese test results, in conjunction with "the intensified volume

10

SENSITIVE SECURITY INFORMATION FILED BX PAR TB AND UNDER SEAL


mshih

Cross-Out

mshih

Cross-Out


11


of and violence in the propaganda and guidance being circulated worldwide by our

terrorist adversaries,” convinced TSA to adapt its selectee-screening procedures to the

evolving security threat. SA 24-25. Indeed, at least one terrorist organization actively

counsels individuals seeking to smuggle an explosive device aboard an aircraft to

avoid checkpoints with AIT. SA 62.

TSA addressed these vulnerabilities in two principal ways. First, TSA

determined that selectees should no longer be permitted to opt for a pat-down in lieu

of undergoing AIT screening. SA 52. Second, TSA established more comprehensive

pat-down procedures for responding to an alert from an AIT scanner

. SA 50. After several months of

iterative testing in which these procedures were revised and refined, see SA 22-23, 53,

TSA noted marked improvement in detection rates for threat items concealed on the

body relative to the then-existing baseline. SA 20-21. TSA implemented the new

procedures nationwide on December 20, 2015. SA 51; see SA 27-49 (new procedures).

C. Prior Proceedings

This petition for review marks pro se petitioner Jonathan Corbett’s third

challenge to some aspect of TSA’s AIT screening procedures.4 Petitioner initially

4 In 2012, Corbett also sued TSA and a host of other defendants for 21 alleged

statutory and constitutional violations arising from an encounter at an airport


mshih

Cross-Out

mshih

Cross-Out


12


sued the United States in federal district court to challenge TSA’s use of AIT scanners

as a primary screening method at airport security checkpoints, and moved for a

nationwide injunction to prevent TSA from implementing AIT screening. See Order

Granting Mot. to Dismiss, Corbett v. United States, No. 10-cv-24106, 2011 WL 2003529

(S.D. Fla. Apr. 29, 2011). The district court denied his motion and dismissed the

action for want of jurisdiction because the procedures he sought to challenge

constituted a TSA “order” pursuant to 49 U.S.C. § 46110. Petitioner appealed and

moved for interim injunctive relief. This Court denied that motion, see Order, Corbett

v. United States, No. 11-12426 (11th Cir. July 27, 2011), and affirmed the district court’s

judgment, see Corbett v. United States, 458 F. App’x 866, 871 (11th Cir. 2012). The

Supreme Court denied certiorari. Corbett v. United States, 133 S. Ct. 161 (2012).

Petitioner then filed a petition for review in this Court, again challenging TSA’s

use of AIT scanners as a primary screening method at airport security checkpoints,

and again requesting interim injunctive relief. The Court denied that second motion

because it “fail[ed] to meet the applicable standard for granting injunctive relief.” See

Order, Corbett v. TSA, No. 12-15893 (11th Cir. Apr. 4, 2013). The Court then

checkpoint. The district court dismissed nineteen of his claims and granted summary judgment to defendants on the remaining two. See Corbett v. TSA, 568 F. App’x 690, 692 (11th Cir. 2014) (per curiam). This Court affirmed. Id.


mshih

Cross-Out

mshih

Cross-Out


13


dismissed the petition as untimely, and, in the alternative, denied the petition “because

the challenged screening procedure does not violate the Fourth Amendment.” Corbett,

767 F.3d at 1184. Petitioner again petitioned for a writ of certiorari, which the

Supreme Court again denied. Corbett v. TSA, 135 S. Ct. 2867 (2015).

Petitioner’s latest petition for review challenges TSA’s decision to mandate AIT

screening for certain travelers as warranted by security considerations. See Pet. for

Review 1, Corbett v. TSA, No. 15-15717 (11th Cir. filed Dec. 28, 2015). The petition

alleges that this screening policy violates the Fourth Amendment and the

Administrative Procedure Act. Petitioner simultaneously moved for a nationwide

injunction to bar TSA from implementing the policy. See Mot. to Stay Order, Corbett,

No. 15-15717 (Dec. 28, 2015). This Court denied petitioner’s motion, see Order,

Corbett, No. 15-15717 (Feb. 22, 2016), and the government’s subsequent motion for

summary disposition of the petition, see Order, Corbett, No. 15-15717 (June 6, 2016).

D. Standard of Review

This Court’s review of the challenged TSA order is governed by 49 U.S.C.

§ 46110(c) and the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). The

TSA’s “[f]indings of fact . . . , if supported by substantial evidence, are conclusive.”

49 U.S.C. § 46110(c). Because § 46110(c) is silent about the standard of review for

nonfactual matters, the standard is supplied by the APA. See Penobscot Air Servs., Ltd. v.


mshih

Cross-Out

mshih

Cross-Out


14


FAA, 164 F.3d 713, 717-18 (1st Cir. 1999). The APA requires that agency action be

upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A).

SUMMARY OF ARGUMENT

1. The petition for review concerns a TSA order requiring certain airline

passengers to undergo AIT screening without a right to opt-out in favor of a pat-

down as warranted by security considerations. The petition should be dismissed for

lack of subject-matter jurisdiction because petitioner lacks Article III standing to

challenge TSA’s screening policy. Petitioner has never been compelled to undergo

AIT screening under the policy, and he cannot show that he faces an imminent threat

of being compelled to undergo such screening in the future. He has therefore failed

to meet his burden to demonstrate that he has suffered an injury-in-fact cognizable

under Article III.

Petitioner’s brief and supporting affidavit are devoid of any suggestion that he

has ever been required to pass through an AIT scanner under the policy he challenges.

The only justification he offers for why he might be one of the small number of

passengers to whom the policy applies is his status as a frequent flyer who intends to

fly frequently. Petitioner surmises that, because TSA has allegedly selected him for

heightened screening in the past, it is likely that he will be subjected to the challenged


mshih

Cross-Out

mshih

Cross-Out


15


policy before one of his future flights. But the Supreme Court foreclosed this theory

of standing in City of Los Angeles v. Lyons, 461 U.S. 95 (1983), which rejected an

identical argument as too speculative to constitute a legally cognizable injury-in-fact.

2. In the alternative, the petition should be denied because none of its three

claims has merit.

First, petitioner claims that TSA’s AIT screening policy violates the Fourth

Amendment. But this Court has already upheld the constitutionality of TSA’s use of

AIT scanners in a previous case brought by petitioner. See Corbett v. TSA, 767 F.3d

1171 (11th Cir. 2014). The Court concluded that “[t]he jeopardy to hundreds of

human lives and millions of dollars of property inherent in the pirating or blowing up

of a large airplane outweighs the slight intrusion of a generic body scan.” Id. at 1182

(quotation marks omitted). That holding controls this case.

Petitioner resists this conclusion on the theory that, because AIT scanning and

a physical pat-down are equally effective at detecting dangerous threats, it is irrational

for TSA to screen certain passengers using the former technique when the latter

technique will suffice. This argument proceeds from the untenable premise that an

AIT scanner provides exactly the same level of security as a physical pat-down. And

it is in any event disproved by the administrative record, which confirms that the

policy of mandating AIT screening for certain passengers as warranted by security


mshih

Cross-Out

mshih

Cross-Out


16


considerations is more effective at detecting potential threats than the opt-out policy

that it replaced.

Second, petitioner claims that TSA’s AIT screening policy is a substantive rule

that must be promulgated through notice-and-comment rulemaking. But TSA has

already concluded notice-and-comment rulemaking with respect to the use of AIT

scanners—a rulemaking that expressly addressed the question whether TSA could

make AIT screening mandatory for certain passengers and that culminated in a final

rule permitting such screening. In any event, petitioner cannot reasonably contend

that the challenged screening policy, which has a de minimis impact on only a small

subset of the traveling population, substantially modifies affected passengers’ overall

screening experience as to require the change to be promulgated using notice-and-

comment in the first place.

Finally, petitioner claims that the challenged policy is so lacking in justification

as to be arbitrary and capricious under the Administrative Procedure Act. This

argument—identical in all salient respects to petitioner’s constitutional argument—is

disproved by the administrative record as well.


mshih

Cross-Out

mshih

Cross-Out


17


ARGUMENT

I. Petitioner Lacks Standing To Challenge TSA’s Policy Mandating AIT Screening for Certain Passengers as Warranted by Security Considerations.

As the party invoking this Court’s jurisdiction, petitioner bears the burden of

proving his standing. See Legal Envtl. Assistance Found., Inc. v. EPA, 400 F.3d 1278,

1281 (11th Cir. 2005). To satisfy that requirement, which derives from Article III of

the U.S. Constitution, petitioner must demonstrate “a personal stake in the outcome

of the controversy [so] as to warrant his invocation of federal-court jurisdiction.”

Warth v. Seldin, 422 U.S. 490, 498 (1975) (quotation marks omitted). As relevant here,

petitioner must show that the challenged agency action has inflicted an “injury in fact”

upon him: that is, an “invasion of a legally protected interest which is (a) concrete

and particularized, and (b) actual or imminent, not conjectural or hypothetical.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotation marks, citations, and

footnote omitted). Although the “risk of real harm” can “satisfy the requirement of

concreteness,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) (citing Clapper v.

Amnesty Int’l USA, 133 S. Ct. 1138 (2013)), such risk may not be premised on a

“speculative chain of possibilities,” see Clapper, 133 S. Ct. at 1147-48 (cited by Spokeo,

136 S. Ct. at 1549). And although threatened injuries can satisfy the requirement of

imminence, such threats “must be certainly impending”; “[a]llegations of possible future


mshih

Cross-Out

mshih

Cross-Out


18


injury are not sufficient.” Clapper, 133 S. Ct. at 1147 (quotation marks omitted).

Because petitioner has failed to prove that he faces a “certainly impending” threat of

mandatory AIT screening, the petition for review should be dismissed.

A. Petitioner Cannot Show that He Has Ever Been or Will Imminently Be Subject to the Policy He Challenges.

Petitioner has not alleged that he has ever been subjected to mandatory AIT

screening under TSA’s policy. Nor can petitioner establish an injury-in-fact on the

basis of speculation that he might be subject to mandatory screening in the future.

Petitioner has supplied no evidence suggesting that he represents a heightened

security risk sufficient to trigger application of the policy to him. Cf. Clapper, 133 S.

Ct. at 1148. Petitioner alleges merely that he “regularly gets the ‘full treatment’” from

TSA because TSA has randomly subjected him to “selectee” screening on “at least 3

occasions” and to an unspecified form of “elevated screening” on “several more

occasions.” See Pet. Br. 1-2. Because petitioner is a frequent flyer who intends to

continue flying frequently, he hypothesizes that “it is likely that [he] will be a selectee

passenger in the near future.” See id.; id. Exh. B, at 3-4.

Petitioner’s theory of standing does not meet the standards established in City of

Los Angeles v. Lyons, 461 U.S. 95 (1983). In that case, plaintiff Adolph Lyons sought to

enjoin Los Angeles police officers from using a certain chokehold technique to render


mshih

Cross-Out

mshih

Cross-Out


19


arrestees unconscious. Id. at 97-98. Lyons alleged that he had been personally

subjected to the challenged technique in the past, and that Los Angeles police officers

“routinely appl[ied] chokeholds in situations where they are not threatened by the use

of deadly force.” Id. at 105. The Supreme Court held that Lyons lacked standing to

sue. As the Court explained, the fact that Lyons “may have been illegally choked by

the police” in the past “does nothing to establish a real and immediate threat that he

would again be . . . illegally choke[d]” in the future. Id. The Court reached that

conclusion despite its recognition that, “among the countless encounters between the

police and the citizens of . . . Los Angeles, there will be certain instances in which

strangleholds will be illegally applied.” Id. at 108. For “it is . . . no more than

speculation to assert either that Lyons himself will again be involved in one of those

unfortunate instances, or that he will be arrested in the future and provoke the use of

[the] chokehold” technique that Lyons challenged. Id.

Petitioner’s theory that, because he was randomly selected for heightened

screening in the past, he is likely to be subject to heightened screening in the future, is

just as speculative as the standing theory rejected in Lyons. Although the “countless

encounters between” TSA agents and airline passengers may well give rise to “certain

instances in which” the mandatory-AIT-screening policy will be applied, that fact does

not make petitioner’s claim any less conjectural. See Lyons, 461 U.S. at 108. As TSA


mshih

Cross-Out

mshih

Cross-Out


20


has explained, the policy does not affect the “vast majority” of airline passengers.

TSA, Frequently Asked Questions, http://www.tsa.gov/travel/frequently-asked-

questions (last visited Oct. 19, 2016); see supra pp. 8-9 (explaining that, under the

selectee-designation regime currently in effect, no more than

airline passengers are randomly designated as selectees to whom the challenged policy

would apply). Such “odds” are not “sufficient to make out a federal case for equitable

relief.” See Lyons, 461 U.S. at 108.

For the same reasons, petitioner has also failed to satisfy the statutory predicate

for a petition for review filed under 49 U.S.C. § 46110. That statute requires him to

allege facts “disclosing a substantial interest” in the TSA order he is challenging. The

term “substantial interest” encompasses the constitutional standing requirement

derived from Article III. See Illinois Dep’t of Transp. v. Hinson, 122 F.3d 370, 371-72

(7th Cir. 1997) (holding that a “substantial interest” is, “[a]t a minimum,” a “palpable,

ideally a measurable” harm to a “concrete, individual, nonideological, in short weighty,

interest” that results from a TSA order). Because petitioner has failed to demonstrate

an injury-in-fact for purposes of Article III, he has correspondingly failed to show a

“substantial interest” in TSA’s challenged screening policy for purposes of § 46110.


mshih

Cross-Out

mshih

Cross-Out


21


B. Petitioner’s Theories of Standing Lack Merit.

Petitioner has advanced several theories of standing in the course of this

litigation, most of which he has abandoned by failing to raise them in his opening

brief. See Resp’t’s Mot. To Dismiss 11-15, Corbett, No. 15-15717 (Feb. 19, 2016)

(listing and rebutting four alternative theories); Resp’t’s Reply in Supp. of Mot. to

Dismiss 2-6, Corbett, No. 15-15717 (Mar. 14, 2016) (listing and rebutting five

additional alternative theories). The three alternatives that he continues to assert all

lack merit.

First, petitioner suggests (Pet. Br. 2) that he has standing because he has

“conducted substantial scholarly research regarding issues surrounding the challenged

order.” But the injury-in-fact requirement cannot be satisfied by the assertion of

“academic interest” in a policy when that policy has not inflicted an injury-in-fact

upon the interested person in question. See Lujan, 504 U.S. at 566-67.

Second, petitioner suggests (Pet. Br. 2) that he has Article III standing because

he has demonstrated a “substantial interest” in the challenged screening policy as

required by 49 U.S.C. § 46110. This argument misperceives the relationship between

Article III’s injury-in-fact requirement and § 46110’s substantial-interest requirement.

As noted, the latter “at a minimum” encompasses the former. See Hinson, 122 F.3d at


mshih

Cross-Out

mshih

Cross-Out


22


371-72. Petitioner’s failure to meet Article III’s injury-in-fact requirement thus means

he cannot satisfy § 46110’s substantial-interest requirement either.

Finally, petitioner suggests (Pet. Br. 2) that, because he had standing to

challenge TSA’s policy of using AIT as a primary screening method at airport security

checkpoints, see Corbett v. TSA, 767 F.3d 1171 (11th Cir. 2014), he must also have

standing to challenge TSA’s policy mandating AIT screening for a small number of

passengers as warranted for security considerations. But petitioner’s previous

challenge targeted a screening policy TSA applied to all passengers at checkpoints

with AIT scanners. Petitioner asserted that TSA “security officers ha[d] denied him

access three times because he refused to consent to the searches prescribed by the

procedure,” and that he expected to be repeatedly subjected to the same screening

methods in future travel. Id. at 1175. Petitioner’s current challenge, by contrast,

targets a policy that “will not . . . affect[]” the “vast majority of passengers,” and

petitioner has failed to demonstrate that it will imminently affect him. See TSA,

Frequently Asked Questions. That distinction makes the jurisdictional difference.


mshih

Cross-Out

mshih

Cross-Out


23


II. TSA’s AIT Screening Policy Is Constitutionally and Procedurally Sound.

Even if petitioner has standing to challenge TSA’s policy making AIT screening

mandatory for certain passengers, his petition for review should still be denied.

Neither his constitutional nor his procedural claim has merit.

A. The Challenged Screening Policy Does Not Violate the Fourth Amendment.

TSA’s challenged screening policy does not violate the Fourth Amendment’s

prohibition on unreasonable searches and seizures. As this Court and every other

circuit to consider the question has held, airport-checkpoint screenings are a form of

administrative search. See Corbett, 767 F.3d at 1179 (listing cases). Because the

primary purpose of such searches is to “ensure public safety” and not to “detect

criminal wrongdoing,” they may be conducted without “individualized suspicion” or a

warrant. Id. at 1179-80. Their reasonableness turns on “the gravity of the public

concerns served by the [search], the degree to which the [search] advances the public

interest, and the severity of the interference with individual liberty.” Id. at 1180

(quoting Brown v. Texas, 443 U.S. 47, 51 (1979)).

Applying this doctrine, this Court has already rejected—in an action brought by

this very petitioner—the constitutional claim at the core of the current petition: that

the Fourth Amendment bars TSA from requiring certain passengers to pass through


mshih

Cross-Out

mshih

Cross-Out


24


an AIT scanner at an airport checkpoint as warranted by security considerations. See

Corbett, 767 F.3d 1171. The previous petition concerned TSA’s policy of requiring all

passengers to submit either to AIT scanning or to a pat-down. The Court

considered—and upheld—the constitutionality of both screening procedures in turn.

This case is controlled by the Court’s holding as to the constitutionality of AIT

scanning. The Court deemed it “clear” that AIT screening constitutes “a reasonable

administrative search” under the Fourth Amendment. Corbett, 767 F.3d at 1179-80,

1182. The Court explained that “the scanners effectively reduce the risk of air

terrorism” by enabling TSA agents to identify nonmetallic threat objects that ordinary

metal detectors cannot detect. Id. at 1180-81. And the Court determined that any

hypothetical privacy concerns arising from AIT screening—already “slight” when

TSA first introduced AIT screening—have been “greatly diminishe[d]” by the reality

that “[t]he scanners now create only a generic outline of an individual.” Id. at 1181.

The Court concluded that “[t]he jeopardy to hundreds of human lives and millions of

dollars of property inherent in the pirating or blowing up of a large airplane outweighs

the slight intrusion of a generic body scan.” Id. at 1182 (quotation marks omitted).

The same conclusion applies here. As the Court observed when it denied

petitioner’s previous petition, “[t]he Fourth Amendment does not compel [TSA] to

employ the least invasive procedure or one fancied by [petitioner].” Corbett, 767 F.3d


mshih

Cross-Out

mshih

Cross-Out


25


at 1182. The Fourth Amendment also does not compel TSA to agree with

petitioner’s assertions as to which screening methods are effective. Id. The choice of

how best to “‘deal with a serious public danger’ . . . should be left to those with ‘a

unique understanding of, and a responsibility for, limited public resources.’” Id. at

1181 (quoting Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 453, 454 (1990)).

Where, as here, TSA has concluded that certain passengers pose enough of a security

risk to warrant mandatory AIT screening, this Court “need only determine whether

the [policy] is a reasonably effective means of addressing the government interest in

deterring and detecting a terrorist attack” at airports. Id. Here, as there, “[c]ommon

sense” reinforces TSA’s reasonable conclusion that security considerations may

sometimes weigh in favor of preventing certain passengers from opting out of AIT

screening. Id.

There is no constitutional significance to the fact that, unlike TSA’s general

AIT-screening policy, the challenged screening policy does not permit passengers to

opt out of AIT screening in favor of a pat-down. Corbett did not hold that the use of

AIT scanners comports with the Fourth Amendment only if accompanied by the

ability to opt out of AIT scanning. Indeed, in holding AIT scanning to be

constitutional, the Court did not once refer to the existence (or nonexistence) of the

pat-down as an alternative option. Its analysis turned solely on the “self-evident”


mshih

Cross-Out

mshih

Cross-Out


26


power of AIT scanners to “reduce the risk of air terrorism” at minimal cost to

privacy. Corbett, 767 F.3d at 1181. Thus, Corbett ’s constitutional holding cannot be

distinguished from this case.

Petitioner’s brief does not attempt to distinguish Corbett on any ground. Nor

does it analyze the administrative-search doctrine that applies to claims such as this

one. Petitioner’s constitutional argument depends entirely on his allegation that

TSA’s challenged screening policy does not “bear[] a rational relation to some

legitimate end.” See Pet. Br. 11. Petitioner argues that, because (in his view) AIT

screening and physical pat-downs are equally effective at detecting dangerous threats,

it is irrational for TSA to screen certain passengers using the former technique when

the latter technique will suffice. To support this asserted equivalence, petitioner

misinterprets TSA’s previous statement that the pat-down component of its general

AIT screening policy is “the only effective alternative method of screening

passengers.” See EPIC v. U.S. Dep’t of Homeland Sec., 653 F.3d 1,3 (D.C. Cir. 2011);

Pet. Br. 13.

The factual premise of petitioner’s argument—that an AIT scanner provides

exactly the same level of security as a physical pat-down—is misplaced. Far from

equating AIT screening with the pat-down technique in terms of effectiveness, TSA’s

recognition that a pat-down is “the only effective alternative method of screening


mshih

Cross-Out

mshih

Cross-Out


27


passengers” simply reflects the agency’s judgment that, when used to screen to the

general population of airline passengers, the pat-down technique provides an

acceptable minimum level of security. That does not preclude TSA from determining

that security considerations may sometimes justify exceeding the baseline established

by the pat-down technique by requiring certain passengers to undergo both AIT

screening and a pat-down—two screening methods that provide distinct benefits

when used in tandem.

The administrative record further refutes petitioner’s argument. Empirical

studies confirm that the challenged policy mandating AIT screening plus a pat-down

is superior to a pat-down alone in detecting concealed threat items. Under the

previous screening regime, selectees could choose to be screened either by an AIT

scanner or by a pat-down. SA 52.

See SA 13, 16, 19, 25; see also

CS 99-100 (classified report). Under TSA’s current operating protocols, selectees

must pass through an AIT scanner, after which selectees are patted down with

particular attention to regions where an AIT alert occurs. SA 52. TSA observed

increase in detection rates when it tested these changes in the field. SA 17.

this increase yielded definitive information that the


mshih

Cross-Out

mshih

Cross-Out


28


performance [was] related

Id.

These empirical findings supply ample justification for TSA’s decision to require

selectees to be screened using both AIT scanners and a pat-down, without the ability

to opt for a pat-down alone.

Petitioner’s suggestion (Pet. Br. 11 n.7) that TSA’s challenged screening policy

might violate the constitutional right to travel is also wrong. Because the Constitution

does not guarantee travelers the “right to the most convenient form of travel,” see City

of Houston v. FAA, 679 F.2d 1184, 1198 (5th Cir. 1982), “burdens on a single mode of

transportation do not implicate” any constitutional right to travel, Miller v. Reed, 176

F.3d 1202, 1205 (9th Cir. 1999).

B. The Challenged AIT Screening Policy Does Not Violate the Administrative Procedure Act.

Petitioner’s Administrative Procedure Act (APA) claims are also without merit.

Although petitioner insists that TSA’s challenged screening policy can only be

implemented through the notice-and-comment rulemaking process, TSA has already

promulgated a final rule governing AIT screening that permits the screening policy

challenged here and explicitly considers and rejects arguments against mandatory AIT

screening. In any event, petitioner cannot reasonably contend that the policy to


mshih

Cross-Out

mshih

Cross-Out


29


require mandatory AIT screening for certain passengers as warranted by security

considerations—which has a de minimis impact on a small subset of the traveling

population—substantially affects passengers’ overall screening experience so as to

require notice-and-comment rulemaking in the first place. And petitioner is wrong to

suggest that the challenged policy is so devoid of justification that it must be reversed

as arbitrary and capricious.

1. TSA has completed notice-and-comment rulemaking with respect to AIT screening policies that encompasses the specific screening policy challenged here.

TSA has already concluded notice-and-comment rulemaking that encompasses

the screening policy that is challenged here. The notice-and-comment process TSA

undertook with respect to its generally applicable AIT screening policy, which began

in 2013 and has culminated in a final rule, specifically addressed the possibility that

AIT screening could be made mandatory. See 78 Fed. Reg. 18,287 (2013) (notice of

proposed rulemaking); 81 Fed. Reg. 11,364 (2016) (final rule). Contrary to petitioner’s

assertions (Pet. Br. 16), the notice of proposed rulemaking expressly invited comment

on “the ability of passengers to opt-out of AIT screening,” 78 Fed. Reg. at 18,294,

and several commenters accepted TSA’s invitation, see supra p. 7. The fact that

commenters objected to the proposed rule on this ground confirms that TSA’s now-


mshih

Cross-Out

mshih

Cross-Out


30


completed notice-and-comment process encompassed the policy challenged by this

petition for review. See Appalachian Power Co. v. EPA, 135 F.3d 791, 816 (D.C. Cir.

1998).

Furthermore, TSA issued its Privacy Impact Assessment Update for TSA

Advanced Imaging Technology while the rulemaking was pending, explaining that

TSA was making AIT screening mandatory for certain passengers as warranted by

security considerations, without giving those passengers the option to select a pat-

down instead of AIT. See AR 1900-06. The final rule explicitly endorses that policy,

describing it as “current DHS policy” and explaining that the regulatory impact

analysis and final rule are being revised to reflect it. 81 Fed. Reg. at 11,366.

The preamble also addresses commenters’ concerns that the proposed rule,

whose preamble stated that “AIT screening is currently optional” and whose text did

not guarantee that AIT screening would be optional, would permit “TSA [to] impose

mandatory AIT screening for all passengers in the future.” 81 Fed. Reg. at 11,387

(emphasis added). TSA declined to guarantee that AIT screening would be optional

in the text of the final rule. Id. at 11,366, 11,387-88. Instead, the preamble to the final

rule explained that TSA “may require AIT use, without the opt-out alternative, as

warranted by security considerations in order to safeguard transportation security.”

Id. at 13,388-89. Petitioner cannot show that TSA’s challenged screening policy


mshih

Cross-Out

mshih

Cross-Out


31


should be enjoined when a rulemaking encompassing that very policy—in which he

himself participated, see Comment of Jonathan Corbett (June 23, 2013)—has

produced a final rule.

2. The challenged screening policy is not a substantive rule that must be promulgated using notice-and-comment because it does not have a substantial impact on the few passengers to whom it applies.

In any event, petitioner has failed to show that TSA was required to

promulgate the challenged AIT screening policy using the notice-and-comment

procedure. The APA’s notice-and-comment provisions do not apply “to

interpretative rules, general statements of policy, or rules of agency organization,

procedure, or practice.” 5 U.S.C. § 553(b)(3)(A). Nor do they apply “when the

agency for good cause finds . . . that notice and public procedure thereon are

impracticable, unnecessary, or contrary to the public interest.” Id. § 553(b)(3)(B).

Petitioner’s only argument as to why notice-and-comment is required turns on his

belief that the challenged policy constitutes a “substantive rule.” See Pet. Br. 14-15.

This belief is mistaken. A substantive rule is one that places “new substantive

burdens” on the people it affects. See EPIC, 653 F.3d at 5. But a rule does not result

in a “substantive burden[]” simply because it has a “substantial impact” on the public.

Id. The inquiry is “one of degree” that depends on “whether the [rule’s] substantive


mshih

Cross-Out

mshih

Cross-Out


32


effect is sufficiently grave so that notice and comment are needed.” Id. (quotation

omitted).

The substantive effect of TSA’s challenged screening policy is minimal. Before

the policy took effect, TSA allowed airline passengers to forgo AIT screening in favor

of a physical pat-down. After the policy took effect, airline passengers may be

required to undergo AIT scanning without the ability to opt for a pat-down in a very

small number of circumstances. Mandatory AIT screening, as this Court has

previously observed, “pose[s] only a slight intrusion on an individual’s privacy”

because the scanners currently deployed to airport checkpoints “create only a generic

outline of an individual.” See Corbett, 767 F.3d at 1181. As such, AIT screening

presents no greater intrusion upon passenger privacy than the walk-through metal

detectors previously deployed at airport checkpoints, and certainly no greater

intrusion upon passenger privacy than the pat-down to which passengers were

previously subjected upon opting out of AIT screening. The “substantive effect” of

the challenged policy is not “sufficiently grave” to transform the policy into a

substantive rule for which notice-and-comment rulemaking is required. See EPIC, 653

F.3d at 5.

Petitioner resists this conclusion (Pet. Br. 14-15) by citing the D.C. Circuit’s

decision in EPIC, supra. The EPIC court held that TSA could not use two now-


mshih

Cross-Out

mshih

Cross-Out


33


defunct models of AIT scanners for primary screening of passengers nationwide

without engaging in notice-and-comment because the scanners “produc[ed] an image

of [an] unclothed passenger” that a TSA agent would view. 653 F.3d at 4, 5-6. The

court concluded that the defunct models of AIT scanners “substantively affect[ed] the

public to a degree sufficient to implicate” passengers’ personal privacy. Id. at 6.

“Indeed, few if any regulatory procedures impose[d] directly and significantly upon so

many members of the public.” Id. By contrast, the AIT screening policy challenged

in this petition applies in a very limited number of circumstances, and the only model

of AIT scanners now in use does not generate “passenger-specific images” and

display only “a generic body contour.” Corbett, 767 F.3d at 1175. Because the policy

at issue here is of much narrower applicability, and because privacy concerns

animating EPIC no longer exist, the D.C. Circuit’s reasoning in EPIC does not

support the conclusion that the “substantive effect [of the policy] is sufficiently grave

so that notice and comment are needed to safeguard the policies underlying the

APA.” See 653 F.3d at 5-6 (citation omitted).

3. Requiring certain passengers to undergo AIT screening as warranted by security concerns is neither arbitrary nor capricious.

Petitioner also challenges TSA’s AIT screening policy as arbitrary, capricious,

and not supported by substantial evidence. As explained above, however, see supra


mshih

Cross-Out

mshih

Cross-Out


34


pp. 27-28, the administrative record fully supports TSA’s decision to require certain

passengers to undergo AIT screening as warranted by security considerations without

permitting such passengers to opt for a pat-down.

Petitioner’s contrary arguments both miss the mark. Petitioner reiterates (Pet.

Br. 13) his view that TSA is barred from determining that mandatory AIT screening is

superior to a pat-down in light of TSA’s previous representation that pat-downs are

“the only effective alternative method of screening passengers.” This argument is as

unavailing in the APA context as it is in the constitutional context. See supra pp. 26-

27. Petitioner additionally asserts (Pet. Br. 16-17) that TSA cannot justify the

challenged policy in terms of a threat to aviation security because TSA did not

promulgate the policy using the APA’s good-cause exception to notice-and-comment

rulemaking. See 5 U.S.C. §§ 553(b)(3)(B). As explained, however, the policy was

encompassed by the existing AIT rulemaking, and in any event is not subject to the

APA’s notice-and-comment requirements. TSA’s decision not to explicitly invoke the

good-cause exception at the time it issued the challenged policy (and while the

rulemaking was underway) does not support the inference that the policy is not

targeted at a real security threat.5

5 Even if petitioner is correct as to either of his APA claims, he is not entitled

to the relief he seeks: that is, an order vacating the challenged screening policy and


mshih

Cross-Out

mshih

Cross-Out


35


CONCLUSION

For these reasons, the petition for review should be dismissed for want of

subject-matter jurisdiction, or, in the alternative, denied.

Respectfully submitted,

BENJAMIN C. MIZER Principal Deputy Assistant Attorney

General WIFREDO A. FERRER

United States Attorney SHARON SWINGLE /s/ Michael Shih

MICHAEL SHIH Attorneys, Appellate Staff Civil Division, Room 7268 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, D.C. 20530 (202) 353-6880 [email protected]

October 2016 remanding it to TSA for notice-and-comment proceedings. See Pet. Br. 17-18. Rather, as the D.C. Circuit recognized when it held that TSA’s AIT screening policy must be promulgated using notice-and-comment, the appropriate remedy is to remand the rule to TSA without vacating it “due to the obvious need for . . . TSA to continue its airport security operations without interruption.” EPIC, 653 F.3d at 11. Preventing TSA from requiring certain passengers posing a heightened security risk to undergo AIT scanning would undermine national security and jeopardize public safety.


mshih

Cross-Out

mshih

Cross-Out

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the requirements of Federal Rule

of Appellate Procedure 32(a). This brief contains 7,772 words.




CERTIFICATE OF SERVICE

I hereby certify that on December 30, 2016, I filed the foregoing brief with the

Clerk of the Court by electronic delivery. I served the following party with the

foregoing brief by electronic delivery:

Jonathan Corbett 382 N.E. 191st St., #86952 Miami, FL 33179 [email protected]




ADDENDUM


TABLE OF CONTENTS

49 U.S.C. § 46110 ................................................................................................................ A1


A1

49 U.S.C. § 46110. Judicial Review

(a) Filing and Venue.—

Except for an order related to a foreign air carrier subject to disapproval by the President under section 41307 or 41509(f) of this title, a person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary or the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by the Administrator) in whole or in part under this part, part B, or subsection (l) or (s) of section 114 may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued. The court may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day.

(b) Judicial Procedures.—

When a petition is filed under subsection (a) of this section, the clerk of the court immediately shall send a copy of the petition to the Secretary, Under Secretary, or Administrator, as appropriate. The Secretary, Under Secretary, or Administrator shall file with the court a record of any proceeding in which the order was issued, as provided in section 2112 of title 28.

(c) Authority of Court.—

When the petition is sent to the Secretary, Under Secretary, or Administrator, the court has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the Secretary, Under Secretary, or Administrator to conduct further proceedings. After reasonable notice to the Secretary, Under Secretary, or Administrator, the court may grant interim relief by staying the order or taking other appropriate action when good cause for its action exists. Findings of fact by the Secretary, Under Secretary, or Administrator, if supported by substantial evidence, are conclusive.

(d) Requirement for Prior Objection.—

In reviewing an order under this section, the court may consider an objection to an order of the Secretary, Under Secretary, or Administrator only if the objection was made in the proceeding conducted by the Secretary, Under Secretary, or Administrator or if there was a reasonable ground for not making the objection in the proceeding.


A2

(e) Supreme Court Review.—

A decision by a court under this section may be reviewed only by the Supreme Court under section 1254 of title 28.


LODGED EX PARTE AND UNDER SEAL SENSITIVE SECURITY INFORMATION

WARNING: This record contains Sensitive Security Information that is controlled under 49 CFR parts 15 and 1520. No part of this record may be disclosed to persons without a “need to know”, as defined in 49 CFR parts 15 and

1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government

agencies, public disclosure is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

LODGED EX PARTE AND UNDER SEAL


case: 15-15717 date filed: 12/30/2016 page: 1 of 52 sensitive … · 2017-05-16 · sensitive...

Documents